October 13, 2020


Amy Coney Barrett, in the hearing before the Senate Judiciary Committee today, defined originalism, a system of legal interpretation to which she is committed:

I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.

She also explained textualism, to which she is also committed:

… textualism, which is the way that I approach statutes and their interpretation. And similarly to what I just said about originalism, for textualism, the judge approaches the text as it was written with the meaning it had at the time; it doesn’t infuse your own meaning into it.

It is helpful that Judge Barrett supplied us with these explanations.

Judge Amy Cony Barrett

The only difference between originalism and textualism, as the judge defines them—I suspect her definitions are generally accepted by those who believe in these approaches to legal interpretation—is the law to which they apply. This is, I think, a distinction without a difference. An originalist/textualist views laws as frozen in time, meaning exactly what they meant when enacted, as indicated by the words of which they are composed. In what follows, I will simply use originalism to refer to this form of legal analysis.

I believe that Judge Barrett’s embrace of originalism is, ipso facto, reason enough to reject her nomination to be an associate justice of the Supreme Court. I say this because I think this approach to law is indefensible and persists only because mainstream thinkers have been reluctant to criticize adherents such as the late Justice Antonin Scalia.

One of the fundamental notions of information theory is that words do not, by themselves, encapsulate meaning. Meaning is conveyed through the interaction of syntax—think grammar—semantics—the referents of individual words or other grammatical units—and pragmatics—roughly speaking, context. As I once wrote: “There is no eternal expression of an eternal truth.” The meaning of the words and, more importantly, the context of a text change over time. That context comprises the entire environment of the text: what the world is like and how it is view by its author. Both the world and the worldview of the Founding Fathers differs substantially from that of 2020 Americans. Hence, I offer my own definition of originalism:

Originalism means governing the country by what we imagine the Constitution used to mean.
Only imperfectly can we conjure the world of the Founding Fathers (or of legislators who followed) to capture the total pragmatics of the Constitution or a statute. Moreover, it isn’t even clear why we should want to do so. The Constitution was not written to be relevant only in 1789 or 1790. It was hoped that it would survive for decades, perhaps centuries, and it is surely true that the lawmakers of 1789 believed that the world of 1879 or 1979 or 2079 would be unchanged from the world they knew. Instead, they had a reasonable expectation that contemporary thought and what we usually call common sense would be applied to their words.

The fundamental question regarding constitutional interpretation is whether the Constitution is a living document. Is the meaning of the Constitution forever fixed or should it be interpreted (or re-interpreted) in the contemporary context? I believe that, since our understanding of the world changes over time—and sometimes changes quite rapidly—it is easier and more sensible to consider the meaning of the Constitution in today’s terms, rather than in the time of its enactment. This means that, rather than constantly revising the Constitution—something that was certainly not anticipated, since it is so hard to do—it is sometimes appropriate for the courts to use the text of the Constitution but not its original meaning to change the law of the land.

For example, the equal protection clause of the Fourteenth Amendment was clearly not intended to protect homosexuals from discriminatory laws. When it was enacted, it was thought to be for the benefit of those formerly held in slavery. Yet the Supreme Court has outlawed statutes against homosexuality and has even sanctioned same-sex marriage. It should not have been necessary to amend the Constitution to make these changes that reflected widespread changes in the American context. A similar argument can be made about invalidating miscegenation laws. None of these decisions could have been made under the jurisprudence of a Justice Any Coney Barrett.

Under a Justice Amy Coney Barrett, our laws will be straight jackets that hinder human progress and—this is my greatest fear—actually undo human progress. The Senate should reject her nomination to the high court.

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